Exchange as a Cornerstone of Families
Martha M. Ertman
University of Maryland Francis King Carey School of Law
Western New England Law Review, Vol. 34, 2012, p. 405-444
U of Maryland Legal Studies Research Paper No. 2012-8
This essay up-ends critical theorist Ivan Illich’s critique of economic thinking as replacing households defined by vernacular gender with married pairs in “inhumane” sex-neutral economic partnerships. It challenges Illich’s view of exchange as a destroyer that has meddled in families for only a few hundred years, citing socio-biological literature to counter his case against exchange with one valorizing two exchanges that I call “primal deals” that played crucial roles in the evolution of humans, families, and day-to-day life. These primal deals -- especially the primal pair-bonding deal between men and women -- continue to play a central role in families and family law today. The essay concludes by using four family law cases to demonstrate the primal deal’s continuing role today, and proposing a doctrinal change to recognize that prenuptial agreements limiting property sharing effectively cancel the primal deal between spouses. Accordingly, courts enforcing prenups should compensate the spouses who gave up property sharing rights in the prenups for the hours, months and years they spent making and sustaining the home and family. Contrary to Illitch’s assertion that exchange-views of families harm women with shadow work and second class citizenship, this change shows how recognizing the entire exchange -- masculine and feminine elements -- can help women get compensated for that shadow work, which would take it out of the shadows.
Number of Pages in PDF File: 41
Keywords: feminism, equality, Ivan Illich, genderAccepted Paper Series
Date posted: February 7, 2012 ; Last revised: October 3, 2012
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